The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-05-11
SUPREME COURT CASES
Reported for The Clarion by w. r. Harper
Atfsrney-at-Lsw, Jackson, Miss
April Term-Issz.

April AGIh-AoSss
5. P. Pool,
V.
JESSE ELLIS, ct al.
Appeal from the Chancery Court of Clay
county. Hon. F. A. Critz, Chancel-
lor.
Barry & Beckett, for the appellant.
Fred Beall, for the appellees.
Alfred Ellis died, intestate, in Octo-
Der, 1866 On December 10, 1866, Thos.
). Ellis was appointed administrator of
his estate. On April 80, 1867, there
were duly registered and probated Ger
tain claims of Seth P. Pool against the
estate of Alfred Ellis, all of which
claims were then past due. On Sept. 9,
1869, the administration presented his
petition to the probate court and asked
that the estate be declared lnsoiyent,
which was duly done by decree of the
chancery court on November 2, 1877.
Accordingly, the lands OF the estate
were ordered by the court to be sold,
and ON December %, 1873, the admins
traitor sold certain of these lands, In
accordance with its direction, In two
tracts, each tract containing more than
| 100 acres, the sale TO be for one-half
cash and balance deferred one year.
Seth P. Pool became the purchaser of
both tracts for 81, $3.50, paying S76S.65
cash, and on January 3, 1873, the further
sum of S6SS.l6 to the administrator,
$500 of which he used in paying debt
against the estate, and the balance he
wasted or used for his personal benefit
Soon afterward Pool and the admins
| traitor having become convinced that
this sale was void, agreed that another
sale should be had and that no convey
| ance of the lands under the first sale
| should be made. On December 29, 1873,
the lands were again sold IN tracts not
exceeding 100 acres, and Poole again
| became the purchaser for S20l3.25. 1t
was understood between the administra-
tor and Pool that the amount, Sl456, 81,
paid the former, for the lands on the
| first sale should be credited on this sec
ond purchase. This sale was regular in
all respects, but neither sale was ever
confirmed, but it was duly reported by
| the administrator. After this second
sale Pool went into possession of the
| land, but whether it was in 1874 or 1879
is disputed. On March /, 1873, Pool
bought the lands in question at sale
of the same for the taxes of 1874, and
certainly soon afterwards went into pos
session and remained in possession till
| the institution of this suit. The chan
cellor found as fact that the admins
TRAITOR had wasted or used for his own
benefit all of the proceeds of the assets
and personally of the estate before Pool
! had made his payment of the first pur-
chase. On August 10, 1880, Jesse Ellis
and Others. heirs of Alfred Ellis de-
ceased, brought an action of election
against Pool to recover possession of
those lands Thereupon Seth 7. Pool
exhibited his bill in the chancery court
against the plaintiffs in ejectment in
which he set out the above facts and
offered to pay whatever sum was due on
the purchase, and prayed that the title
to the lands bought by him, complain
ant, at the administrator sale be dlvest-
ed out of all of s4id heirs of Alfred
Ellis, deceased, and vested in a commits
sioner who shall convey the same to
complainant; that the tax title of COM
plainant be confirmed and quieted that
| the plaintiffs in the ejectment suit be
perpetually enioined from all attempts
| to invalidate the title of complainant.
The bill further prays that il the titles
| derived from the purchase at the admin
lstratOr's sales or at the tax sale, or
either of them should be declared void,
that complainant be granted lien on
the lands for the purchase money paid
by him to the administrator and for
general relief The chancellor decreed
that the first sale was void because in
violation of section Is, article II of the
constitution; that complainant was en-
titled to deed by virtue of the second
administrators sale on the payment of
the price agreed; that the tax sale and
title derived therefrom was void because,
as to a part, the assessment and deed are
uncertain; and because of an excessive
levy, and because the complainant, Pool,
being in possession of these lands under
a contract of purchase, was bound to
pay the taxes due thereon, and could
get no right whatever by purchase
| from the tax collector. The court or
dered that an account be stated between
| Pool and the estate of Alfred Ellis, de-
ceased, directing that Pool be charged
with the amount SE043.25 of his bid for
the lands purchased at the second adj
ministratOr's sale, that he be credited
with $500, that being the amount of the
purchase money paid by Pool to the
administrator and used by the latter in
paving debt of the estate, and also
that he be credited with several of the
claims held by him against the estate
and referred to above, and also allowed
to be credited certain judgment of E.
B. CASTOR against the estate of Alfred
Ellis, deceased, which was rendered on
June 20, 1870, and assigned to Pool on
| August "a, 1881 that he be charged with
rents and credited with improvements.
The court also ordered that an account
be stated between the administrator
and the estate, and that the interest of
Thos. S. Ellis, administrator, and heir
of the estate of Alfred Ellis, still due
after charging him with the funds of
the estate wasted by him and crediting
him with the debts due by him from
the intestate, be subjected to the pay
ment of that part of the purchase money
wasted or used by said administrator
for his own personal benefit. Upon this
basis of calculation Pool was found to be
indebted to the estate in the sum of
$215091, which was ordered to be paid
to the defendants, heirs Of Alfred Ellis.
From this decree complainant, Pool,
appealed.
COOPER, c. j., delivered the opinion of
the Court.
We do not find it necessary to deter
mine whether since the adoption of the
constitution of 1869, it Is competent for
a chancery court under any circum-
stances to direct a sale of land to be
made in tracts exceeding one hundred
and sixty acres. 1t is indisputably true
that the sale made in 1872 was thought
by all parties to be invalid because of
| the excess in quantity of each tract
offered, and resolve was made to con-
form to the constitutional provision.
No objection to the second sale was
made by Pool; he acquiesced in what
was done, and appeared at the second
sale and bought again the land which
had previously been sold to him.
Neither the sale made in 1872 nor
that made in 1873 was ever confirmed
by the court. The appellant was not
under obligation to pay to the administra-
tor any portion of his bid before confr-
nation, and such payment was not bind
ing upon the estate or the heir at law;
the administrator held the money as a
mere depository of the purchaser, and If
it was wasted or misappropriated by
him the loss must be borne by the
purchaser. State use &c. VS.. Cox, 81
Miss, 7s6. Fearing VS.. Shafner, ID,
791.
The chancellor by subrogating the
appellant to the rights of the creditor to
the payment of whose debt against the
estate part of the purchase money was
applied, extended to him the full meas
ure of relief to which he was entitled.
The debts due from the intestate to the
administrator were properly liquidated
by applying to them the assets of the